This book contributes to the debate about the relationship between law and society in the Roman world. This debate, which was initiated by the work of John Crook in the 1960s, has had a profound ...
More

This book contributes to the debate about the relationship between law and society in the Roman world. This debate, which was initiated by the work of John Crook in the 1960s, has had a profound impact upon the study of law and history and has created sharply divided opinions on the extent to which law may be said to be a product of the society that created it. This work is an attempt to provide a balanced assessment of the various points of view. The chapters within the book have been specifically arranged to represent the debate. The chapters address this debate by focusing on studies of law and empire, codes and codification, death and economics, commerce and procedure. This book does not purport to provide a complete survey of Roman private law in light of Roman society. Its primary aim is to address specific areas of the law with a view to contributing to the larger debate.Less

Beyond Dogmatics : Law and Society in the Roman World

John W. CairnsPaul J. du Plessis

Published in print: 2007-05-25

This book contributes to the debate about the relationship between law and society in the Roman world. This debate, which was initiated by the work of John Crook in the 1960s, has had a profound impact upon the study of law and history and has created sharply divided opinions on the extent to which law may be said to be a product of the society that created it. This work is an attempt to provide a balanced assessment of the various points of view. The chapters within the book have been specifically arranged to represent the debate. The chapters address this debate by focusing on studies of law and empire, codes and codification, death and economics, commerce and procedure. This book does not purport to provide a complete survey of Roman private law in light of Roman society. Its primary aim is to address specific areas of the law with a view to contributing to the larger debate.

What do the following behaviours have in common: shouting and swearing, painting graffiti, killing a fox by kicking it, glue-sniffing, cross-dressing in public, dangerous driving, discharging a ...
More

What do the following behaviours have in common: shouting and swearing, painting graffiti, killing a fox by kicking it, glue-sniffing, cross-dressing in public, dangerous driving, discharging a fire-arm, engaging in a roof-top prison protest, throwing a lit firework in a bus, attempting to commit suicide, making threatening gestures, and kerb crawling? Incredibly, each of these behaviours has been successfully prosecuted in Scotland as the crime of ‘breach of the peace’. This book describes and critiques this commonly prosecuted crime. The author traces the development of the crime from the mid-19th century to the present day, and also considers related statutory offences. The latter include those offences created by the Criminal Justice and Licensing (Scotland) Act 2010, and the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. It is argued that breach of the peace remains an overly broad and ill-defined crime – despite the appeal court’s attempts at narrowing its definition.Less

Breach of the Peace

Pamela R. Ferguson

Published in print: 2013-07-15

What do the following behaviours have in common: shouting and swearing, painting graffiti, killing a fox by kicking it, glue-sniffing, cross-dressing in public, dangerous driving, discharging a fire-arm, engaging in a roof-top prison protest, throwing a lit firework in a bus, attempting to commit suicide, making threatening gestures, and kerb crawling? Incredibly, each of these behaviours has been successfully prosecuted in Scotland as the crime of ‘breach of the peace’. This book describes and critiques this commonly prosecuted crime. The author traces the development of the crime from the mid-19th century to the present day, and also considers related statutory offences. The latter include those offences created by the Criminal Justice and Licensing (Scotland) Act 2010, and the Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012. It is argued that breach of the peace remains an overly broad and ill-defined crime – despite the appeal court’s attempts at narrowing its definition.

This book is a treatise on youth justice which examines the treatment, by the criminal law and the criminal justice system, of children who commit serious crimes. It draws on legal, philosophical and ...
More

This book is a treatise on youth justice which examines the treatment, by the criminal law and the criminal justice system, of children who commit serious crimes. It draws on legal, philosophical and Childhood Studies literature to look at the interaction between law and childhood and considers a number of cases, including the murder of James Bulger in 1993 through these lenses, noting the difficulties for legal systems, of accommodating individuals who are, simultaneously, both “child” and “criminal”. The law’s impulse is to protect children and to call to account and punish offenders – aims which sometimes conflict. Other areas of law encounter similar difficulties in the tension between the child’s need for protection and for the nurture of his/her growing autonomy. Drawing on its discussion of this child-criminal paradox, the book examines two examples of the law’s response to children who offend: the age of criminal responsibility and the doli incapax presumption. It proceeds to argue that, in every case, a thorough investigation of the child’s criminal capacity, drawing on developmental psychology, is necessary to provide a fair and rational basis for decisions on responsibility and disposal in respect of such children. It presents a model for achieving this. It also examines the existing response of the Scottish legal system to such children, both in the courts, and through the children’s hearings system. Overall, the argument is for a fair and compassionate approach which takes account of the public interest and the need for public confidence in the criminal justice system.Less

Childhood and Crime

Claire McDiarmid

Published in print: 2007-08-01

This book is a treatise on youth justice which examines the treatment, by the criminal law and the criminal justice system, of children who commit serious crimes. It draws on legal, philosophical and Childhood Studies literature to look at the interaction between law and childhood and considers a number of cases, including the murder of James Bulger in 1993 through these lenses, noting the difficulties for legal systems, of accommodating individuals who are, simultaneously, both “child” and “criminal”. The law’s impulse is to protect children and to call to account and punish offenders – aims which sometimes conflict. Other areas of law encounter similar difficulties in the tension between the child’s need for protection and for the nurture of his/her growing autonomy. Drawing on its discussion of this child-criminal paradox, the book examines two examples of the law’s response to children who offend: the age of criminal responsibility and the doli incapax presumption. It proceeds to argue that, in every case, a thorough investigation of the child’s criminal capacity, drawing on developmental psychology, is necessary to provide a fair and rational basis for decisions on responsibility and disposal in respect of such children. It presents a model for achieving this. It also examines the existing response of the Scottish legal system to such children, both in the courts, and through the children’s hearings system. Overall, the argument is for a fair and compassionate approach which takes account of the public interest and the need for public confidence in the criminal justice system.

Why did Roman prosecutors typically accuse the defendant of multiple crimina, when in most standing criminal courts the punishment imposed on a guilty defendant was the same (typically “capital,” ...
More

Why did Roman prosecutors typically accuse the defendant of multiple crimina, when in most standing criminal courts the punishment imposed on a guilty defendant was the same (typically “capital,” that is, a kind of exile), no matter how many charges were proven? The answer lies not in a failure to distinguish between legal charges leveled at the defendant and defamation of his character, but rather in a rhetorical strategy that made sense in light of what was legally necessary to obtain a conviction. The greater the number of charges, the more likely the jurors would be persuaded that the defendant had in some way violated the statute according to which the trial was being conducted. It is true that prosecutors typically argued that the defendant’s prior conduct made it plausible that he had committed the crimes with which he was charged, but in a way that, as much as possible, made his guilt on these particular charges seem likely, and defense patroni attempted to undermine the charges and the character defamation. This answer to the apparent contradiction between multiple charges and unitary punishment favors a moderate formalism over legal realism as the way to interpret Roman criminal trials.Less

Cicero's Law : Rethinking Roman Law of the Late Republic

Published in print: 2016-10-01

Why did Roman prosecutors typically accuse the defendant of multiple crimina, when in most standing criminal courts the punishment imposed on a guilty defendant was the same (typically “capital,” that is, a kind of exile), no matter how many charges were proven? The answer lies not in a failure to distinguish between legal charges leveled at the defendant and defamation of his character, but rather in a rhetorical strategy that made sense in light of what was legally necessary to obtain a conviction. The greater the number of charges, the more likely the jurors would be persuaded that the defendant had in some way violated the statute according to which the trial was being conducted. It is true that prosecutors typically argued that the defendant’s prior conduct made it plausible that he had committed the crimes with which he was charged, but in a way that, as much as possible, made his guilt on these particular charges seem likely, and defense patroni attempted to undermine the charges and the character defamation. This answer to the apparent contradiction between multiple charges and unitary punishment favors a moderate formalism over legal realism as the way to interpret Roman criminal trials.

This book provides a practical guide to the Arbitration (Scotland) Act 2010 together with comparative international case studies. It provides a thorough analysis of the Arbitration (Scotland) Act ...
More

This book provides a practical guide to the Arbitration (Scotland) Act 2010 together with comparative international case studies. It provides a thorough analysis of the Arbitration (Scotland) Act 2010 (which provides a modern statutory framework for domestic and international arbitration in Scotland) and the most important current issues that are arising in the field of international commercial arbitration. It includes a number of highly relevant legal case studies that compare Scottish and international practice. These provide a practical insight into the various aspects of arbitration. It also includes a number of chapters on international practice. These cover UNCITRAL Model Law, UNCITRAL Arbitration Rules, institutional arbitration rules, and International Bar Association arbitration guidelines.Less

Commercial Arbitration

Hong-Lin Yu

Published in print: 2011-04-01

This book provides a practical guide to the Arbitration (Scotland) Act 2010 together with comparative international case studies. It provides a thorough analysis of the Arbitration (Scotland) Act 2010 (which provides a modern statutory framework for domestic and international arbitration in Scotland) and the most important current issues that are arising in the field of international commercial arbitration. It includes a number of highly relevant legal case studies that compare Scottish and international practice. These provide a practical insight into the various aspects of arbitration. It also includes a number of chapters on international practice. These cover UNCITRAL Model Law, UNCITRAL Arbitration Rules, institutional arbitration rules, and International Bar Association arbitration guidelines.

This book is an analysis of those who worked in the Court of Session, Scotland's central civil court, during the eighteenth century. It looks at the activities of the highest members of what was the ...
More

This book is an analysis of those who worked in the Court of Session, Scotland's central civil court, during the eighteenth century. It looks at the activities of the highest members of what was the College of Justice, the judges and the advocates, whose arguments and decisions guided the development of Scots law, as well as the macers, clerks, keepers and agents whose roles were vital in allowing the court to deal with its business. The Court of Session had a central place in Edinburgh and its members were drawn from across Scotland. It was the professional milieu of men of the calibre of Lord Kames, Sir David Dalrymple of Hailes and Sir Walter Scott. Despite a turbulent history with a town council jealous of their privileges, College members made a profound contribution to the physical and cultural development of Edinburgh as a city. This is their story.Less

The Community of the College of Justice : Edinburgh and the Court of Session, 1687 –1808

John Finlay

Published in print: 2012-08-31

This book is an analysis of those who worked in the Court of Session, Scotland's central civil court, during the eighteenth century. It looks at the activities of the highest members of what was the College of Justice, the judges and the advocates, whose arguments and decisions guided the development of Scots law, as well as the macers, clerks, keepers and agents whose roles were vital in allowing the court to deal with its business. The Court of Session had a central place in Edinburgh and its members were drawn from across Scotland. It was the professional milieu of men of the calibre of Lord Kames, Sir David Dalrymple of Hailes and Sir Walter Scott. Despite a turbulent history with a town council jealous of their privileges, College members made a profound contribution to the physical and cultural development of Edinburgh as a city. This is their story.

The comparative law of property is a budding, but still extremely underdeveloped, field of study; yet its importance is self-evident in an age of Europeanisation of law and legal scholarship. ...
More

The comparative law of property is a budding, but still extremely underdeveloped, field of study; yet its importance is self-evident in an age of Europeanisation of law and legal scholarship. Bringing together contributions of scholars from the civilian tradition (France, Germany, Italy), the common-law world (England) and mixed legal systems (Quebec, Scotland, South Africa), The Consequences of Possession examines from a historical and comparative perspective the consequences which the law derives from the recognition of a possessory relationship between a person and a thing. Excluding rights which require more than possession to be triggered (such as prescriptive acquisition or transfer of title by delivery), it focuses on the protection of possession across the divide between the two great western legal traditions.Less

The Consequences of Possession

Published in print: 2014-06-01

The comparative law of property is a budding, but still extremely underdeveloped, field of study; yet its importance is self-evident in an age of Europeanisation of law and legal scholarship. Bringing together contributions of scholars from the civilian tradition (France, Germany, Italy), the common-law world (England) and mixed legal systems (Quebec, Scotland, South Africa), The Consequences of Possession examines from a historical and comparative perspective the consequences which the law derives from the recognition of a possessory relationship between a person and a thing. Excluding rights which require more than possession to be triggered (such as prescriptive acquisition or transfer of title by delivery), it focuses on the protection of possession across the divide between the two great western legal traditions.

Commissioned by the Clark Foundation for Legal Education, this book is derived from the inaugural Jean Clark Lectures, hosted by the University of Aberdeen in 2007. Across three lectures, the text ...
More

Commissioned by the Clark Foundation for Legal Education, this book is derived from the inaugural Jean Clark Lectures, hosted by the University of Aberdeen in 2007. Across three lectures, the text discusses and analyses the legal and constitutional issues arising from the Disruption of the Church of Scotland in 1843 when the majority of leading ministers left the Church of Scotland to set up the Free Church. It takes a look at the series of cases in the Court of Session and the House of Lords between 1837 and 1843 which led to the Disruption, showing how they gave rise to the most important constitutional crisis and challenge to the Courts' authority that had occurred since the 1707 Union.Less

The Courts, the Church and the Constitution : Aspects of the Disruption of 1843

Published in print: 2008-07-09

Commissioned by the Clark Foundation for Legal Education, this book is derived from the inaugural Jean Clark Lectures, hosted by the University of Aberdeen in 2007. Across three lectures, the text discusses and analyses the legal and constitutional issues arising from the Disruption of the Church of Scotland in 1843 when the majority of leading ministers left the Church of Scotland to set up the Free Church. It takes a look at the series of cases in the Court of Session and the House of Lords between 1837 and 1843 which led to the Disruption, showing how they gave rise to the most important constitutional crisis and challenge to the Courts' authority that had occurred since the 1707 Union.

This book surveys the traditional classifications of private law to establish the cognitive techniques used by medieval Italian and French jurists to transform Roman law into the ius commune of ...
More

This book surveys the traditional classifications of private law to establish the cognitive techniques used by medieval Italian and French jurists to transform Roman law into the ius commune of Western Europe. It discusses in detail how medieval scholars reacted to the casuistic discussions in the inherited Roman texts, particularly the Digest of Justinian. It shows how they developed medieval Roman law into a system of rules that formed a universal common law for Western Europe. Because there has been little research published in English beyond grand narratives on the history of law in Europe, this book fills a gap in the literature. With a focus on how the medieval Roman lawyers systematised the Roman sources through detailed discussions of specific areas of law, it considers: the sources of medieval law and how to access them; the development from cases to rules; medieval lawyers' strategies for citing each other and their significance; and the growth of a conceptual approach to the study of law.Less

The Creation of the Ius Commune : From Casus to Regula

John W. CairnsPaul J. du Plessis

Published in print: 2010-07-30

This book surveys the traditional classifications of private law to establish the cognitive techniques used by medieval Italian and French jurists to transform Roman law into the ius commune of Western Europe. It discusses in detail how medieval scholars reacted to the casuistic discussions in the inherited Roman texts, particularly the Digest of Justinian. It shows how they developed medieval Roman law into a system of rules that formed a universal common law for Western Europe. Because there has been little research published in English beyond grand narratives on the history of law in Europe, this book fills a gap in the literature. With a focus on how the medieval Roman lawyers systematised the Roman sources through detailed discussions of specific areas of law, it considers: the sources of medieval law and how to access them; the development from cases to rules; medieval lawyers' strategies for citing each other and their significance; and the growth of a conceptual approach to the study of law.

This is the second volume in a collection of the most influential essays on legal history from the career of Professor John W. Cairns. The book deals with broad themes in legal history, such as the ...
More

This is the second volume in a collection of the most influential essays on legal history from the career of Professor John W. Cairns. The book deals with broad themes in legal history, such as the development of Scots law through the major legal thinkers of the Enlightenment, essays on Roman law and miscellaneous essays on the literary and philosophical traditions within law. Both volumes combine together and reprint a selection of some of the many articles and essays published by Cairns over a distinguished career in legal history. It is a mark of Cairn's international eminence that much of his prolific output has been published outside of the UK, in a wide variety of journals and collections. The consequence is that some of his most valuable writing has appeared in sources which are difficult to locate.Less

Enlightenment, Legal Education, and Critique : Selected Essays on the History of Scots Law, Volume 2

John W. Cairns

Published in print: 2015-08-01

This is the second volume in a collection of the most influential essays on legal history from the career of Professor John W. Cairns. The book deals with broad themes in legal history, such as the development of Scots law through the major legal thinkers of the Enlightenment, essays on Roman law and miscellaneous essays on the literary and philosophical traditions within law. Both volumes combine together and reprint a selection of some of the many articles and essays published by Cairns over a distinguished career in legal history. It is a mark of Cairn's international eminence that much of his prolific output has been published outside of the UK, in a wide variety of journals and collections. The consequence is that some of his most valuable writing has appeared in sources which are difficult to locate.